TESTIMONY SUBMITTED TO THE SENATE COMMITTEE ON INDIAN AFFAIRS: OVERSIGHT HEARING ON IMPLEMENTATION OF THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT PUBLIC LAW 101-601 January 18, 1996 Kūnani Nihipali, Po'o I am Po`o (leader) of Hui Mālama I Nā Kūpuna ‘O Hawai'i Nei (Hui Mālama), a Native Hawaiian organization dedicated to the care and protection of ancestral Native Hawaiian remains. Our kumu are Edward and Pualani Kanahele of Hilo. Pursuant to NMAI and NAGPRA, Hui Mālama has repatriated and reinterred ancestral Native Hawaiian remains and funerary objects from the Smithsonian National Museum of Natural History, Bernice Pauahi Bishop Museum, American Museum of Natural History, Field Museum of Natural History, University of Alaska Museum, Brigham Young University Museum of Peoples and Cultures, Milwaukee Public Museum, San Diego Museum of Man, University of Pennsylvania Museum of Archaeology and Anthropology, Sacramento Science Center, Peabody Essex Museum, University of California Hearst Museum, University of Oregon Museum of Anthropology, Harvard Peabody Museum of Archaeology and Ethnology, Yale Peabody Museum of Natural History, Dartmouth Hood Museum of Art, Earlham College Moore Museum, and Los Angeles County Museum of Natural History. Internationally, Hui Mālama was repatriated ancestral Native Hawaiian remains and burial objects from the Royal Ontario Museum (Toronto, Canada), Universitat Zurich-Irchel Anthropologisches Institut und Museum (Switzerland) and South Australian Museum. In 1995, Hui Mālama filed suit against the U.S. Navy and Bishop Museum for violating NAGPRA by conducting scientific studies on over 1,500 ancestral Hawaiians thereby failing to expeditiously repatriate. The remains originated from Mõkapu, Heleloa, Ulupa'u and Kuwa'a'ohe, Ko'olaupoko district, O'ahu. Hui Mālama sought to have the scientific information recorded from these ancestral Hawaiians expunged from the NAGPRA inventory report published by the Navy. We viewed the scientific studies as unnecessary since cultural affiliation was already known by a reasonable belief to be Native Hawaiian, and more importantly, as personal violations of the integrity and sanctity of these ancestors. In our view, the scientific studies were outright violations of kanawai (Hawaiian law), amounting to a theft of mana (energy). The law suit sought to delete the scientific information in order to help restore that mana to the ancestors which is necessary for their spiritual well being. Protection of the mana of the Mōkapu ancestors is part of the responsibility to mālama (care for). However, the district court found that the conduct of scientific studies by the U.S. Navy on the Mōkapu remains did not violate NAGPRA and instead is consistent with NAGPRA's goal of identifying remains for repatriation. Moreover, the court said Congress impliedly approved further research on human remains during the inventory in order for museums and federal agencies to better comply with NAGPRA's identification and repatriation requirements. The court ruled that the Mōkapu inventory is subject to the disclosure requirements of the Freedom of Information Act ("FOIA") as none of the FOIA exemptions were applicable. The court found that NAGPRA does not contain any language evincing a legislative intent to limit disclosure of inventory information. 23-074 96-6 The court's ruling will allow unnecessary desecration of ancestral Hawaiian remains already disturbed from sacred burial sites. The adverse effect on the living includes placement of a heavier burden on those who accept the responsibility to mālama i nā iwi kūpuna (care for the ancestral bones). As a result of the court's decision, Hui Mālama offers the following recommendations for the Committee's consideration. These recommendations are intended to further strengthen the civil rights nature of this important legislation. I. The Role of Scientific Study Must Be Clarified Furthermore, NAGPRA should be clarified to state that where existing documentation establishes geographic location and cultural affiliation either by clear, reasonable belief, or the preponderance standard of evidence, scientific studies of any kind on ancestral skeletal remains are prohibited. scientific study or any other form of recording or preserving scientific information from human skeletal remains during the NAGPRA inventory process should only be allowed when existing documentation fails to satisfy any of the applicable NAGPRA standards of identification. Acquisition of scientific information from possible Native Hawaiian remains should only be allowed where a thorough review of all existing information possessed by a museum or agency fails to establish cultural affiliation by a reasonable belief and where the additional evidence provided by a Native Hawaiian organization fails to satisfy the preponderance standard. The scope of any scientific study deemed to be necessary to establish cultural affiliation and initiated during the inventory process must be strictly limited to the determination of cultural affiliation by a preponderance. Since the preponderance of evidence is not a high standard, only minimal scientific information should be allowed to be acquired. Once the information acquired establishes cultural affiliation to be more likely than not, the inquiry must end. Recording of scientific information not related to, or in addition to, the establishment of cultural affiliation should be clearly prohibited. Necessary scientific study must be viewed as a last resort in the NAGPRA identification process. Furthermore, scientific study to clarify cultural affiliation should only be conducted where the museum or federal agency and Tribe or Native Hawaiian Organization agree that none of the NAGPRA identification standards have been satisfied based on available documentation evidence, or after the matter is submitted to the NAGPRA Review Committee as a dispute, the Committee recommends scientific study, and the parties agree. Since treatment of ancestral remains is and will always be a fundamental attribute of sovereignty and self-determination, the aforementioned concerns should be framed as a consensual issue allowing for those Tribes or Native Hawaiian organizations who, once cultural affiliation is established, wish to have additional scientific studies conducted, may elect to do so. This way, those Tribes and Native Hawaiian organizations who object to |